NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1163n.06 No. 12-1298 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT RYAN KEND RI CK, Petitioner-Appellant,

v. L L OYD RAPEL J E, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: NORRI S, GI BB ONS, and DON AL D, Circuit J udg es.

PER CURI AM. Ry an Kendr ick, a Mic h ig an state prisoner, appea ls throug h counsel a district court orde r dismissing his petition for a wr it of habea s corpus, filed pursuant to 28 U.S.C. § 2254. Kendr ick was convicted by a jury in 2000 of first deg ree murder, assault with intent to do g reat bodily harm, and conspirac y to assault with intent to do g reat bodily harm. He was sentenc ed

to life imprisonment. On direc t appea l in the state courts, Kendr ick argued that the trial court err ed in failing to sever the m urder char g e from the other c harg es, that the state de nied him due proc ess by failing to prese rve the crime scene , and that his sta t em en t t o t he police should have been suppressed. His convictions wer e aff irmed. Kendr ick fi l ed a post-conviction action in the trial court, raising claims of ineffe ctive assistance of trial and appellate counsel. The trial court denied relief

. Kendr ick’s appea l to the Michig an C o urt of Appea ls was dismiss ed for failing to file the

rec ord.No. 12-1298

Kendrick v . Rapelje On Novembe r 4, 2010, Ke ndrick filed this petit ion for a writ of habe as cor pus, rea sserting

some of the claims that he had raised in the state courts. The responde nt moved for summary j u d gment, arguing that the petition was barr ed by the one-year statute of limit ations. Ke n d ri ck argued in reply that he was entitled to equitable tolling. The district court conclude d that Kendr ick had not established entitlement to e quitable tolling for the amount of time that would be nece ssary to rende r his petition timely and dismiss ed the petition. On appea l, Kendr ick rea sserts his equitable tolling ar g ument. Where the f

acts are not in dispute, we revie w de novo a district c ourt dec ision declining to apply equitable tolling. Miller v. Colli ns , 305 F.3d 491, 495 (6th Cir. 2002). The parties ag ree that the statutory limit ations period bega n to run on October 27, 2003, when Kendr ick’s conviction beca me final. The statutory period ran until August 12, 2004, when his state post-conviction action

was filed. The period was tolled until J une 27 , 2 0 0 5 , wh en h is appea l from the post-conviction decision was dismiss ed. This petition was filed more than five y ear s and four months later. Ke ndrick arg

ues that this period should be equitably tolled beca use his reta ined counsel faile d t o keep him informed of the status of his case , and when he did corr espond, lied to him about the status of his post-conviction proc eedingand the a vailability

of fe dera l habea s corpus re lief. Kendr ick, thr o u gh h is gr a

n d mo th e r, filed a g rieva

nce ag ainst his attorney in September 2008. I n April 2009 he retrie ved his file from counsel. In November 2 009, the g rieva nce commission admonished Kendrick’s at torney reg arding his perf ormanc e. Throug hout this time, Kendr ick and his g randmother wer e informed by more than one other attorney that t he time for filing a fede ral habea s corpus petition had expired. Kendr ick argues that he first rea liz ed that equitable tolling might -2-No. 12-1298

Kendrick v . Rapelje allow him to fil e a fede ral habea s corpus petition when the Supreme Court issued its opinion in Holland v. Florida , 130 S. Ct. 2549 (2010) on J une 14, 2010. There afte r, Kendr ick hired a new attorney , who filed his petition on November 4, 2010. Kendr ick bore the burden of establishing his entitlement to equitable tolling. See Jurado v. Burt , 337 F.3d 638, 642 (6th Cir. 200 3 ). I n o rder to do so, he had to show that extraordinary circ umstances prevente d his filing, and that he wa s diligent in pursuing his case . Holland , 130 S. Ct. at 2562. The Six th Circuit has appl i ed equitable tolling to habea s corpus petitions since McClendon v. Sherman , 329 F.3d 490, 494 (6th Cir. 2003). Howeve r, it may have been rea sonable for Kendr ick to rema in ignor ant on the availability o f equitable tolling beca use attorney s advised him that it was too late to file a fede ral habea s corpus petition. Cf. Griffin v. Rogers , 399 F.3d 626, 637 (6th Cir. 2005 ) (i g noranc e of the law alone does not war rant equitable tolling). But even if the

s t at u t ory period is tolled for five y ear s, from J une 2005, when his post-conviction appea l wa s dismiss ed, unti l J une 2010, when Holland was iss ued, his petition was sti ll untimely

. The statute of limitations s hould be equitably tolled until t he ea

rliest date on whic h the petitioner, a cting with

rea sonable diligenc e, should have filed his petition. Valverde v. Stinson , 224 F.3d 129, 134 (2d Cir. 2000). At the conclusion of his state post-conviction proce eding s, Kendr ick had approximately two months rema ining in the statutory period. But five months elapse d betwee n the decision in Holland and the filing of Kendr ick’s petition, a dela y which the Supre me Court f ound constituted a lack of diligenc e in Pace v. DiGuglielmo , 544 U.S. 408, 419 (2005). Kendr ick argues that the voluminous

rec ord i n his case require d his new counsel that amount of t ime to prepa re the petition. In United States v. Martin , 408 F.3d 1 0 8 9 , 1 0 9 5 (8th Cir. 2005), when the defe ndant beca me awa re of his -3-No. 12-1298

Kendrick v . Rapelje counsel’s dece ption, he promptly filed a pro se petition, thus establishing his entitlement to equitable tolling. Her e, in contra st, Kendr ick’s new reta ined counsel failed to promptly file a petition raising issues that had previously been formulated during the state court proce eding s, and which could have been a mended. On the fac ts of this case , we conclude that the district court proper ly found that, wh i l e Kendr ick was entitled to equitable tolling for some time due to his former counsel’s unprofe ssional conduct, he was not entitled to toll the running of the s tat u t e fo r the l eng th of t ime at i ssue i n this

case . Thus, his petition is still untimely

. Acc ording ly , the district court’s dismiss al of this petition is affirme d.

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